The Reconstruction of Georgia / Studies in History, Economics and Public Law, Vol. 13, No. 3, 1901

CHAPTER III

CONGRESSIONAL DELIBERATIONS AND ACTIONS CONCERNING THE JOHNSON
GOVERNMENTS, ENDING IN THE RECONSTRUCTION ACTS OF 1867

When Congress met on December 4, 1865, President Johnson informed it of the measures he had taken for restoring the southern states and of the conditions he had required as necessary to restoration. He emphasized the requirement that the Thirteenth Amendment be ratified (which, as stated in Chapter I, was complied with in Georgia five days later).

It is not too much to ask [he said], in the name of the whole people, that, on the one side, the plan of restoration shall proceed in conformity with a willingness to cast the disorders of the past into oblivion; and that, on the other, the evidence of sincerity in the future maintenance of the Union shall be put beyond any doubt by the ratification of the proposed amendment.... The amendment to the Constitution being adopted, it would remain for the states ... to resume their places in the two branches of the national legislature.[53]

That Congress was not entirely pleased with the President’s course; that it did not agree with him considering the adoption of the Thirteenth Amendment, the most that could be asked of the southern states, and that it did not intend to give effect to his last suggestion, soon became apparent. In the Senate, on the day on which the President’s message was read, Sumner offered resolutions to the effect that before the southern states should be admitted to representation in Congress they must enfranchise “all citizens,” establish systems of education open to negroes equally with white people, and choose loyal persons for state and national offices.[54] The resolutions concluded: “That the states cannot be precipitated back to political power and independence, but they must wait until these conditions are in all respects fulfilled.”[55]

The House of Representatives, after organizing, immediately proposed to the Senate a joint committee to “inquire into the condition of the states which formed the so-called Confederate States of America, and report whether they, or any of them, are entitled to be represented in either house of Congress.” The Senate accepted the proposal, and on December 13 the committee was formed.[56]

Five months passed before the committee reported. During that interval Congress took no action determining the question at issue. A vast number of bills and resolutions was introduced proposing various modes of treatment for the southern states and various theories regarding their status, which are interesting to the historian, but all of which fell by the way. The Freedmen’s Bureau Bill, if it had become law during this period, would have implied that in the opinion of Congress the late Confederate States were simply territory of the United States and not states in the Union.[57] But this bill failed to be repassed over the President’s veto.[58] The Civil Rights Bill, which became law on April 9, 1866, made it a crime to discriminate against any person on account of his race or color under the alleged authority of any state law or custom, gave the federal judicial authorities power to arrest and punish any person guilty of this offense, and also gave the federal courts jurisdiction over any case before a state court in which such discrimination was attempted.[59] This law created entirely new relations between federal and state authority, but since it was passed as an act to enforce the Thirteenth Amendment,[60] and applied to all states alike, it committed Congress to no declaration regarding the status of the southern states.

The joint committee made its long-expected report on April 30, 1866.[61] A great number of witnesses had been examined regarding conditions in the South, whose testimony fills a large volume and purports to be the basis of the committee’s report. The committee thought that since the Johnson governments had been set up under the military authority of the President and were merely instruments through which he had exercised that power in governing conquered territory, they were not regular state governments. This belief was confirmed by the fact that the existing state constitutions had been framed by conventions acting under the constant direction of the President, and also by the fact that they had not been submitted to the people for adoption. The Johnson governments then were not state governments at all, and so could not send representatives to Congress.

The committee appealed less to this constitutional argument than to arguments of policy. It was willing to grant the “profitless abstraction” that the southern states still remained states. The people of those states had waged war on the United States. Though subdued, they were defiant, disloyal, and abusive. They showed no disposition to abate their hatred for the Union or their affection for the Confederacy. To accord to such a people entire independence, taking no measures for security from future danger; to admit their representatives to Congress; to allow conquered enemies “to participate in making laws for their conquerors;” to turn over to the custody of recent enemies the treasury, the army, the whole administration—this would be madness unexampled.

For these reasons the committee recommended a joint resolution and two bills. The resolution proposed an amendment to the Constitution forbidding any state to abridge the civil rights of citizens of the United States, or to deny to any person the equal protection of the laws, providing that a state which withheld the electoral franchise from negroes should suffer a deduction from its Congressional representation, and providing that until 1870 all adherents to the Confederacy should be excluded from voting for members of Congress and for Presidential electors. The first of the two bills was to enact “that whenever the above recited amendment [should] have become a part of the Constitution of the United States, and any state lately in insurrection [should] have ratified the same, and [should] have modified its constitution and laws in accordance therewith,” then its representatives might be admitted to Congress. The second bill was to make ineligible to office under the United States men who had been prominent in the service of the Confederacy.

A minority of the committee took issue with the majority on both its legal and its political views. The states under consideration, said the minority, had never gone out of the Union; therefore, being states of the Union, Congress could not lawfully deprive them of their rights as states. That the Johnson governments were only the machinery of military occupation, set up by the conquering general, was denied.

We know [said the minority report] that [the southern states] have governments completely organized, with legislative, executive, and judicial functions. We know that they are now in successful operation; no one within their limits questions their legality, or is denied their protection. How they were formed, under what auspices they were formed, are inquiries with which Congress has no concern.

A state is under no restriction as to the mode of altering its constitution; if it chooses to receive assistance from the President, or any one else, the validity of the amended constitution is not affected.

To the statement of the majority regarding the disposition of the southern people, the minority opposed the high authority of General Grant. In an official report he had said:

I am satisfied that the mass of thinking men of the South accept the present situation of affairs in good faith.... [They] are in earnest in wishing to do what they think is required by the government ... and if such a course was pointed out they would pursue it in good faith.

The right way in which to deal with the southern people was, then, to conciliate them, as the President had tried to do, not to perpetuate their hostility.

If Congress adopted the program recommended by the majority, said the minority, it would repudiate its own solemn declaration made in 1861,

that this war is not waged upon our part in any spirit of oppression, nor purpose of overthrowing or interfering with the rights or established institutions of those states, but to defend and maintain the supremacy of the Constitution, and to preserve the Union, with all the dignity, equality, and rights of the several states unimpaired.[62]

The proposed provisions regarding ineligibility would dishonor the government by annulling the pardons granted by the President. Further, the program contradicted itself, since it proposed to treat the southern communities as states, in submitting a constitutional amendment to them, while at the same time imposing on them conditions to which a state could not lawfully be subjected.After a debate of which these two opposing reports are a convenient summary, Congress adopted the program of the committee. The joint resolution, changed into a form embodying the present Fourteenth Amendment, was passed on June 13, 1866.[63] The two bills proposed were taken up, but Congress adjourned without bringing them to a final vote, leaving the South to be regulated during the recess by the Civil Rights Act, and by an act, passed over the President’s veto on July 16, embodying in a less drastic form the provisions of the Freedmen’s Bureau Bill which had failed in February.[64]

When Congress met in December, 1866, the same voluminous mass of reconstruction proposals and declaratory resolutions appeared in both houses as at the last session. But the denunciation of the President and of the Johnson governments was more emphatic in these bills and resolutions, as well as in the debates. Sumner proposed a resolution to this effect:

That all proceedings with a view to reconstruction originating in executive power are in the nature of usurpation; that this usurpation becomes especially offensive when it sets aside the fundamental truths of our institutions; that it is shocking to common sense when it undertakes to derive new governments from the hostile populations which have just been engaged in armed rebellion, and that all governments having such origin are necessarily illegal and void.[65]

Another resolution proposed that the committee of the House on territories be instructed to take steps for organizing the districts known as Virginia, North Carolina, etc., into states. Cullom said in a speech:

During the last session of this Congress we sent to the country a proposed amendment to the Constitution.... The people of the rebel states by their pretended legislatures are treating it with scorn and contempt.... It is time, sir, that the people of the states were informed in language not to be misunderstood that the people who saved this country are going to reconstruct it in their own way, the opposition of rebels to the contrary notwithstanding.[66]

Another fact which appeared prominently in the speeches and resolutions of this session was the growing fear, real or assumed, that freedmen and loyal persons in the South were in mortal danger. Bills for their protection were introduced by the dozen.

Shall we shut our eyes [said a speaker] to the abuse and murders of loyal men in the South, and the continued destruction of their property by wicked men, and give them no means of protection?[67]

Stevens exclaimed that the United States would be disgraced

unless Congress proceed[ed] at once to do something to protect these people from the barbarians who [were] daily murdering them; who [were] murdering the loyal whites daily, and daily putting into secret graves not only hundreds but thousands of the colored people.[68]

At first the lower house resumed its consideration of the bills recommended at the last session by the joint committee. But early in February, 1867, these were dropped in favor of a new bill. This was the Reconstruction Bill which became law on March 2. It provided that the South should be divided into five districts, each to comprise the territory of one or more of the southern states. The President should assign to each district a military officer not below the rank of brigadier-general, and should detail for his use a sufficient military force. The duties of these officers should be “to protect all persons in their rights of person and property, to suppress insurrection, disorder and violence, and to punish, or cause to be punished, disturbers of the public peace and criminals.” To this end they might either allow local courts to exercise their usual jurisdiction or organize special military courts, for the procedure of which a few general regulations were provided in the bill. Until the states should be by law restored to the Union, the governments existing in them were declared “provisional only, and in all respects subject to the paramount authority of the United States, at any time to abolish, modify, control or suspend the same.”

In section 5 of this bill were stated the conditions upon which the southern states might regain their places in the Union. In each of them a constitutional convention should be elected. For members of this convention all male “citizens” of the voting age should vote, except those excluded from office by the pending Fourteenth Amendment. These were forbidden to sit in the convention or to vote for delegates. The convention thus formed should frame a new constitution, which should give the franchise to all persons qualified to vote for delegates by the present bill. The constitution should be submitted to the people of the state for ratification, and to Congress for approval. When these should have been received, and when the legislature elected under the new constitution should have ratified the Fourteenth Amendment, then Congress should pass an act admitting the reconstructed state to Congressional representation, and the present law should cease to operate in that state.[69]

The principle of this bill was the same as that of the reconstruction measures first undertaken at the suggestion of the joint committee, namely the punishment of an enemy. The debate in the House was opened by a felicitous quotation from Vattel on the public law applicable to the case of a conquered enemy.[70] The punishment here provided was, however, more severe than that first proposed. The former program was designed to offer to the states the alternative of adopting the Fourteenth Amendment or remaining out of the Union and under the Freedman’s Bureau—which was, indeed, regarded as a very obnoxious alternative. But the present bill required them not only to ratify the amendment, but to adopt new constitutions, elect new governments, enfranchise the negroes, and disfranchise their most prominent and respected citizens; and meanwhile imposed upon them not simply a bureau, to interfere in individual cases, but the virtually absolute rule of a military governor.

This bill was passed over Johnson’s veto on March 2, 1867. On March 23 a supplementary act was passed, providing means for executing section 5 of the preceding act. The initiative in calling the constitutional conventions, instead of being left to the states, to be exercised or not, as they chose, was now assigned to the military governor. He, with the assistance of such boards of registry as he might create, was directed to register all persons qualified to vote for delegates. He should then fix the number of delegates and arrange the plan of representation, set the day for election and summon the convention.[71]

A third reconstruction act was passed on July 19, 1867. It is unnecessary to discuss it, since it was only explanatory of the acts of March 2 and 23, and added nothing which needs mention here to their provisions.[72]

Were the Reconstruction Acts constitutional? Since the Supreme Court has failed, either voluntarily or otherwise, to decide every case brought before it depending upon this question,[73] reasoning is not rendered idle by authority. The Supreme Court has indeed expressed a definite opinion on the subject, but has given no decision.

The opinion referred to was expressed in the case of Texas versus White.[74] The Court said:

These new relations [namely, those created by the civil war] imposed new duties upon the United States. The first was that of suppressing the rebellion. The next was that of re-establishing the broken relations of the states with the Union. The authority for the performance of the first had been found in the power to suppress insurrection and to carry on war; for the performance of the second, authority was derived from the obligation of the United States to guarantee to every state a republican form of government.

This the Court considered good authority for the passage of the Reconstruction Acts. Most of the advocates of the acts based them upon this theory.

Now, upon that clause of Article IV., Section 4, of the Constitution which says: “The United States shall guarantee to every state in this Union a republican form of government,” the Federalist remarks:

It may possibly be asked whether [this clause] may not become a pretext for alterations in the state governments without the concurrence of the states themselves.... But the authority extends no further than to a guarantee [the Federalist’s italics] of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed.[75]

The intention of the clause, says the Federalist in the same paper, is simply to guard “against aristocratic or monarchic innovations.” To one not interested in establishing the constitutionality of the Reconstruction Acts, it seems indisputable that the clause is rightly interpreted by the Federalist. Story accepts this interpretation as a matter of course.[76] Cooley groups the clause with that which forbids the states to grant titles of nobility.[77] If this interpretation is correct, then the guarantee clause gives no authority for destroying a state government of a republican form and substituting another.

There is, however, a constitutional basis for the Reconstruction Acts. It is the war power of Congress.

If a section of the people of a stale rebel against the government, the resulting contest is not a war, in the sense of international law. But as it may assume the physical character of a war, so it may call into existence the rights and customs incident to war. Upon this principle the federal government acquired the rights of war in the contest of 1861-1865.[78] Now the rights of war do not end with military operations; one of these rights is the right of the victorious party, after an unconditional surrender, to occupy the territory of the defeated party, to govern or punish the people as it sees fit. If the United States government acquired the rights of war, this right was included. The close of a war is not simultaneous with the cessation of fighting. The surrender of the southern armies was an important incident in the civil war; it was not the end. If the federal government had the rights of war before this incident, it had them after.

The United States government might therefore say to the persons composing the military power which it had subdued: As the terms of war, you are to be governed by military government. If the persons against whom this sentence is assumed to have been pronounced formed the majority of the population of a state, one result of the sentence would be to suspend independent state government. The United States government might choose another punishment. It might say to the lately hostile persons: We forbid you to participate in the federal government. If the persons so sentenced form the majority of the population of a state, that state can send no representatives to Congress while the sentence remains. These sentences might be imposed permanently or only until such time as the people sentenced should fulfil certain demands—hold certain conventions, pass certain laws, adopt certain resolutions in certain ways. The federal government can thus effect through its war powers what it cannot effect through any power to interfere directly with a state government. It had no right to reconstruct the government of Maine in 1865, because Maine had no body of people over whom the federal government could exercise war powers. It had the right to reconstruct the government of Georgia, because nine-tenths of the people of Georgia were lawfully at its mercy as a conqueror.

Even if it be admitted, however, that the federal government had the power described, it may still be argued that the Reconstruction Acts are not legally justified. A conqueror has a right to govern a conquered people as he pleases and as long as he pleases; he also has a right to alter his mode of treatment and substitute another mode. But after he has imposed certain terms as final, after the requirements of these terms have been complied with, after he has restored the conquered people to their normal position and rights and has unmistakably terminated the relation of conqueror to conquered—then his rights of war are at an end. It may be argued that this was the case when the Reconstruction Acts were passed. It may be argued that in December, 1865, the federal government had, through the President, terminated its capacity as a conqueror, and could regain that capacity only by another war; that after that termination it had no more power to reconstruct Georgia than to reconstruct Maine.

This argument is irrefutable if we assume that the President had full power to act for the federal government in the disposition of the defeated Secessionists, and that therefore his acts of 1865 were the acts of the federal government. In case of an international war, which is closed by a treaty, the President may (if supported by the Senate) act finally for the federal government, and estop that government (so far as international law is concerned) from further action. But at the close of a civil war he cannot exercise his diplomatic power. The disposition of the defeated people in this case falls to the legislative branch of the government.

If the President had pardoned a great majority of the Secessionists, that fact perhaps might have legally estopped Congress from passing the Reconstruction Acts. These acts were a war punishment, and a pardon cuts off further punishment.[79] But the total number of persons who received amnesty under the proclamation of May 29, 1865, was 13,596,[80] which was of course only a small fraction of the Secessionist population.

The passage of the Reconstruction Acts may thus be regarded, from a legal point of view, as simply the substitution of one method of treating the defeated enemy for another. The change was from mildness to harshness. It was doubly bitter to the defeated enemy, after he had been led to believe that his punishment was over, to be subjected to a worse one. But these are not legal considerations.

That the Reconstruction Acts required communities not states to ratify a constitutional amendment did not affect their legality. That an amendment depended for its validity on such ratification might make the amendment void (though even from this result there is a means of escape in the theory of relation, to be mentioned later), but that would not affect the act requiring the ratification. That this requirement was not made with the exclusive purpose of obtaining votes for the passage of the amendment is shown by a resolution introduced into the House of Representatives on July 21, 1867, which reads:

Resolved, That in ratifying amendments to the Constitution of the United States ... the said several states ... are wholly incapable either of accepting or rejecting any such amendment so as to bind the loyal states of the Union, ... and that when any amendment ... shall be adopted by three-fourths of the states recognized by the Congress as lawfully entitled to do so, ... the same shall become thereby a part of the Constitution.[81]

What virtues the Reconstruction Acts had besides legal regularity will be discussed later.

Clyx.com